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ACMA supports Melbourne's Commonwealth Games →

Providing a reliable communications environment (both radiocommunications and telecommunications) was essential for the safety of all individuals involved and to enable the Games to be broadcast with minimal interference from external radiocommunications sources. The Commonwealth Games Workforce set up by ACMA consisted of 33 technical and three administrative staff from its offices throughout Australia. The workforce provided on-site guidance and support to M2006 organisers about the operation of telecommunications and radiocommunications equipment within Australian standards.

Key roles for the ACMA workforce were testing of communications equipment being used by media representatives at Games venues, allocation of radiofrequencies to M2006, including ceremonies and teams, and authorising short-term use of services by international media representatives, including issuing licences. An important responsibility for ACMA was the monitoring and inspection of Games venues, before and throughout the Games, to prevent radiocommunications interference. Some of the issues dealt with by ACMA were the use of uncoordinated wireless microphones, unlicensed two-way radios used by visiting hockey teams and monitoring the visit of international dignitaries.. This monitoring and inspection service was vital for the smooth functioning of the Games and ensuring minimal disruption within the Melbourne CBD. Safety of individuals was the primary concern for ACMA staff in carrying out their responsibilities, allowing emergency services, public transport and general users of radiocommunications equipment to continue their daily routines with minimal interference.

ACMA supports Melbourne’s Commonwealth Games ACMA played a significant part in the staging of the XVIII Commonwealth Games held in Melbourne in March 2006. Support was provided by ACMA under a service agreement with the Melbourne Commonwealth Games Corporation (M2006). Issue 7 – April 2006 Australia’s regulator for broadcasting, the internet, radiocommunications and telecommunications www.acma.gov.au SCANNING FREQUENCIES AT THE MELBOURNE SPORTS AND AQUATIC CENTRE DIRECTION-FINDING AT THE MELBOURNE CRICKET GROUND

More than two hundred Townsville schoolchildren recently participated in Cybersmart Detectives, ACMA’s online safety activity that teaches children key internet safety messages. It was the second activity to be held in Queensland and the first to exclusively involve Townsville schools. Cybersmart Detectives is an innovative online game where children can learn, in a safe environment, tips for safe online chatting and ways to identify dangers associated with meeting people online. Internet chat rooms are popular with young people and internet chat is often used by children and teenagers, in conjunction with mobile phone text messaging and email, to make and stay in touch with friends, plan social activities and even do homework.

ACMA organised the event in partnership with the Townsville Police’s Juvenile Aid Bureau. The bureau approached ACMA to run Cybersmart Detectives after receiving interest from schools eager to register for the activity. The bureau provided a virtual ‘control room’ to guide students through the activity. School-based police officers were on hand to answer student questions after the event. Support was also provided by Queensland Police, who operated a virtual control room at their Brisbane Headquarters. Aimed at young people in the upper primary school age range, Cybersmart Detectives uses the internet to teach young people key internet safety messages, especially those related to use of internet chat rooms. These key messages are: • parents should monitor their children’s use of the internet, particularly chat rooms • children should never give out personal information when they’re chatting online • if children want to meet someone face-to-face who they've chatted with online, they should always take a parent with them • people may not be who they say they are in the online environment.

The Cybersmart Detectives activity was initially developed by Childnet International, a body based in the United Kingdom, and operated under the name of Net Detectives until 2005. The activity is now independently operated by E- ngagelive. By agreement with E-ngagelive, ACMA adapted the activity for use in Australian schools under the name Cybersmart Detectives, as part of its program of activities to educate the community about internet safety. The activity is managed by internet safety experts, including law enforcement and internet industry representatives, who deliver clues and respond to questions from virtual control rooms. Children play the role of a Deputy Principal concerned about the welfare of a new student, Sarah, who may be being bullied by someone she has met in an internet chat room. Guided by a series of clues, children work collaboratively in teams to solve the mystery of what is worrying Sarah, and why. Experts respond to the questions and theories posed by the students, and guide the teams through each of the clues. As the scenario unfolds, the children discuss the risks of certain online and offline behaviours, and ways of managing those risks. Australia’s co-regulatory scheme for internet content is administered by ACMA under the Broadcasting Services Act 1992. Awareness and education are seen as essential components of the strategy to manage potential risks associated with the internet. ACMA works with internet safety bodies such as NetAlert to raise awareness of internet safety issues and provide parents with information that helps them supervise their children's internet usage. As part of the scheme, ACMA provides advice and assistance to families about internet safety matters, primarily through its internet safety website, www.cybersmartkids.com.au, and printed resources, such as the brochures Cybersmart Guide and How to be Phone Smart. The brochures are on the ACMA website (www.acma.gov.au and go to Internet > Content regulation > Community awareness).

4 ACMAsphere | Issue 7 – April 2006 N E W S N E W S My involvement with ATUG goes back to the early 1990s when I was working at Westpac and we combined with ATUG to do some high quality analysis on the economic benefits of deregulation in this area. The world moves on and I am now a member of a regulatory board. This conference provides me with the opportunity to talk about the new ACMA and the way we are approaching our task. I want to talk particularly about two aspects of our approach to regulation: • industry responsibility as a core principle • transparency as a regulatory tool.

The creation of ACMA has been about more than just bringing together the ACA and the ABA. It has provided (and was meant to) a whole new way of looking at the world that recognised that digital technology had fundamentally changed the choices you can make in providing services and in the choices available to you as consumers. While the distinctions between radiocommunications, telecommunications and broadcasting still exist, they are becoming less important for consumers. ACMA was established in recognition of that.

We have essentially two functions: • provision of services to industry to help them to operate efficiently, for example, spectrum, phone numbers, allocation of licences, interference management, standards and • monitoring and regulating industry outputs, such as quality, access, cost and content, to ensure social objectives are met. Our regulatory intent is to support a dynamic communications sector. And the very dynamism of the sector creates real challenges for the regulator. We do not want to cramp the industry but we want to make sure community concerns are addressed. How do we do that in this dynamic environment, in a market that is changing increasingly quickly and in which geography and national borders are less important? I have reflected from time to time that our generation enjoys a unique distinction. Our forbears saw technological change as the replacement of one technology by another. We have a more compressed experience. I think we are the first generation to have seen whole technologies work out their life-span within our own— the audio cassette will have come and gone, the fax held sway for a decade or two before succumbing to the internet, and the job of computer operators as we know them in the 70s and 80s has come and gone. With this level of change in the market, the old ‘command and control’ approach to regulation becomes increasingly difficult. If we try to address community concerns through command and control mechanisms, we can act as a roadblock to much of this dynamism. I read that Stephen Carter, head of Ofcom in the UK, recently described this challenge as ‘avoiding the transitory comfort of ill-formed certainty’.

So how do we approach the challenge of ensuring the community’s social objectives ACMA regulation update Speech by Lyn Maddock, ACMA Deputy Chair, at ATUG 2006 Conference: Collaborate, Communicate, Innovate, on 7 March 2006 ACMA DEPUTY CHAIR LYN MADDOCK SPEAKING AT THE CONFERENCE

are met without hobbling industry? It makes sense to have a reliance on industry responsibility as one of the key elements of the regulatory approach. We recognise that industry itself is often best placed to evaluate and handle trade-offs that might be needed. As a relative newcomer to the world of telecommunications, I was struck by the continuing debate around the use of ‘self- regulation’ and ‘co-regulation’ to describe the regulatory environment in which the industry operates. Let’s look at what is intended: it is that industry as a community has the first responsibility for acting to ensure social objectives are achieved. These social objectives will in the main be consistent with your long-term economic interests.

We hope to provide you with the space to address them so they do not undercut your commercial interests—you are best placed to do this. But where the social objectives are not met or where some parties are not meeting their obligations, we will act. We want to make ‘industry responsibility’ work, so we are reviewing the way we interact with you—we aim to be more research-based in assessing what social objectives are appropriate and how they can be effectively met, to have early discussions about these with you and your representatives, but to leave the method by which you address issues more in your hands.

But if industry is to accept this responsibility with confidence, it is important that we as the regulator are more open about where we have intervened, both broadly or in individual cases, and in what ways, and make clear why we have done so and what we expect. We will do this because: • we need to be accountable for our actions and • you need to know what we are thinking and why we are acting. We will be more active in generating research which will go to the general issues where we may consider intervening. And we will be more active in making public the details of individual cases where we use our regulatory powers. We will not make everything public without consideration— there is often a fine balance to be struck between transparency and privacy—but the bias will be towards transparency. This may well be uncomfortable in individual instances, where the transgressions (in our view) of particular companies are revealed, but we consider that in the main, good public policy commits us to this approach. TELECOMMUNICATIONS ISSUES So what do we see as the telecommunications issues facing us over the next 12 months?

A raft of new policy changes is being considered by government across all aspects of ACMA’s responsibilities, from the requirements for high definition television broadcasting through to the regulatory obligations associated with the privatisation of Telstra, our major telecommunications provider. In particular, the full privatisation of Telstra, which is currently majority owned by the government, and the likely relaxation of the cross and foreign ownership restrictions in media may well transform our broadcasting and telecommunications players. As well as these changes, we seem finally to be on the edge of a significant growth in broadband penetration and digital television take-up. We need to continue to monitor performance by Telstra’s network services in rural Australia and have set up a special team to focus on this. The advent of VOIP or voice over internet protocol telephone calls has forced us to look at whether the current regulatory framework is adequate. One of the big challenges to regulation here has been how to facilitate the entry of a useful new technology without stifling it with the regulatory imperatives of the previous generation of fixed-line and even mobile services.

Mobile communications continues to present new challenges, especially its relationship with the internet and the question of how content should be regulated. Telecommunications regulatory costs are a continuing concern and we are conscious that ‘because you pay’ is not an excuse for lack of concern by us. We recognise the role of conferences such as this one and the need for openness. And we need to do more to encourage consumer participation in the regulatory process. The challenges are significant, but they also provide exciting opportunities for both the industry and the regulator. We need to improve the way ACMA operates so it can be a ‘state of the art’ regulator.

And for Australia to take full advantage of the social and economic opportunities presented by technology and service developments, it must have a communications and media industry that is constantly challenged to develop innovative services, increase quality and reduce prices. EMERGING CHALLENGES How will ACMA manage the emerging challenges posed by the telecommunications, radiocommunications and broadcasting sectors? ACMA is operating in a regulatory environment that is highly dynamic, unpredictable and varied. It is likely to be a regulator defined by its awareness of those new realities implicit in the converged broadcasting- telecommunications marketplace. We want to be evidence-led in our approach and so will put a high priority on research and analysis. The changing environment may mean starting to look at things quite differently and developing new strategies. We need to use our regulatory powers flexibly and cleverly to be able to handle emerging issues.

Regulators play a vital role in informing consumers of their rights and opportunities so that they can better navigate the marketplace. And education plays a central role in an authority’s ability to regulate in the public interest because consumers require information and knowledge in order to make informed decisions. So in conclusion, the characteristics of the environment we are operating in have changed. As regulators, our aim should be to create a regulatory framework that encourages the creation of innovation and competition. To respond to the demands of a changing market environment, regulators must continue to evaluate whether the market that we have created allows competition and innovation to flourish.

ACMAsphere | Issue 7 – April 2006 5 N E W S

6 ACMAsphere | Issue 7 – April 2006 N E W S A trial of the Australian Internet Security Initiative (AISI), an ACMA database containing up-to-date data on ‘compromised’ personal computers, was launched on November 2005 by the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan. The data is supplied to internet service providers (ISPs) for them to take action to rectify the problems caused by these PCs. These are generally ‘zombie’ PCs— computers that have been infected by a computer virus, trojan horse or similar intrusion, including hacking. Once infected, zombies can be used to commit online crimes, such as sending spam or hosting offensive material, remotely from anywhere in the world without the computer owner knowing—hence the term ‘zombie’. In addition to the detrimental impact zombie PCs have on the safety and security of the internet, owners of these PCs may find themselves paying for bandwidth they did not know they were using. Six Australian ISPs are currently participating in the trial: Telstra BigPond, OptusNet, Westnet, Uecomm, Pacific Internet and West Australian Networks. These ISPs receive daily reports from ACMA on infected PCs on their networks. The ISPs then contact the customers operating these PCs to advise them of actions they can take to fix the problem. If the problem is not fixed and the PC remains a threat to other internet users, the computer may be disconnected from the internet until the problem is resolved.

Preliminary results from the AISI trial indicate it is having a positive impact, in conjunction with other internet security activities, in reducing the incidence of compromised PCs on the Australian internet. The chart records the total number of events or instances of compromised PCs reported daily by ACMA to participant ISPs. The trend has reduced from more than 60 events daily at the start of the trial to fewer than 20 per day at the end of March 2006. ACMA, in collaboration with other government agencies, is assessing the outcome of the AISI trial to decide whether to commence a wider rollout of the initiative. ACMA commends participant ISPs in assisting with the trial and assisting in efforts to make the internet a more safe and secure environment, to the mutual benefit of business and consumers.

A review of the operations of the Spam Act 2003 and the relevant parts of the Telecommunications Act 1997 that support it was announced by the Minister for Communications, Information Technology and the Arts, Senator Helen Coonan, in December 2005. ACMA provided a submission to the review, which is being conducted by the Department of Communications, Information Technology and the Arts (DCITA), in February 2006. ACMA’s submission concluded that the legislation has generally been successful, appropriate and ‘a model for spam legislation around the world’. Most professional spammers that were active in Australia prior to the commencement of the Telecommunications Act have ceased operations, and Australia has dropped from tenth to twenty-third on the list of worldwide spamming nations.

However, the activities and methods utilised by spammers are continually evolving and the ACMA submission recommended amendments to the Spam Act to capture some practices recently adopted by professional spammers, such as the inclusion of misleading or deceptive sender or subject information, and the use of compromised machines to send emails. The Spam Act places considerable obligations on business in appropriately controlling its email communications. Most businesses made the required changes to their practices when the Act was passed, and many incurred considerable cost in doing so. As there is no evidence that the Spam Act is insufficient in this regard, ACMA did not recommend any changes to the Act that would further impact on such businesses.

However, businesses still face some areas of uncertainty. In particular, the rules for determining customer ‘consent’ for the receipt of commercial electronic messages could be more fully prescribed in some areas. SMS marketing also is creating some problems. ACMA suggested in its submission that a body representative of industry and consumers (such as the eMarketing Code Body) could be asked to develop detailed practices that could become ‘safe harbour’ provisions for businesses. The ACMA submission also recommended that several powers and obligations of ACMA related to the administration and enforcement of the Spam Act be clarified. It was recommended that ACMA be given a legislative power to share information with international regulators, similar to the power held by the Australian Securities and Investments Commission, and that the complaint provisions of the Telecommunications Act be amended to make them more appropriate to the spam context.

While the Spam Act has been generally successful in combating the problem of spam originating in Australia, the challenge now is to accelerate the global fight against spam. There must be appropriate regulatory, enforcement, technological and cooperative frameworks in place to detect and punish professional spammers wherever they are located. This will become increasingly important if spam continues its rise as the main delivery mechanism for e-security threats and crime. The ACMA submission to the review of the Spam Act is on the ACMA website (www.acma.gov.au), and all submissions to the review are on the DCITA website (www.dcita.gov.au). Spam Act review an opportunity to update anti-spam framework Retreat of the zombies 1/11/06 8/11/05 15/11/05 22/11/05 29/11/05 6/12/05 13/12/05 20/12/05 27/12/05 3/01/06 10/01/06 17/01/06 24/01/06 31/01/06 7/02/06 14/02/06 21/02/06 26/02/06 7/03/06 14/03/06 21/03/06 26/03/06 120 100 80 60 40 20 Internet Security Initiative – Reportable Events – 1 Nov 2005 to 1 April 2006

ACMAsphere | Issue 7 – April 2006 7 N E W S A world-first code of practice on countering spam for internet and email service providers, developed by industry to support the Spam Act 2003, was registered by ACMA in March 2006. Registration of the Internet Industry Spam Code of Practice shows Australia is again leading the world in the global fight against spam, which requires joint action by industry, regulators and end-users. Industry codes represent one element of Australia’s multilayered strategy against spam, which includes legislation, technical counter- measures, education and awareness initiatives and international cooperation.

Under the code, internet and email service providers must provide spam- filtering options to their subscribers. They must also give end-users information about how to deal with spam and have a process for handling complaints from subscribers. The code also sets out how internet and email service providers will address the sources of spam within their own networks, including actual spammers, misconfigured customer email servers and the virus- infected computers used to spread spam (known as ‘zombies’). Suggested technical best practices for hardening the network against spam and related threats such as zombies are also included in the code. These are consistent with the technical best practices being promoted by global internet and email service provider associations. The Australian internet industry is already actively combating spam. For example, three-quarters of all internet service providers in Australia already voluntarily offer a spam- filtering product to their customers as either a free or charged service (Australian Bureau of Statistics figures).

The code applies to all 689 active internet service providers in Australia, as well as global email service providers in Australia, such as Hotmail and Yahoo. Registration of the code allows ACMA to direct individual internet and email service providers to comply with the code if necessary. The code obligations will come into force on 16 July 2006. The code was developed by an Internet Industry Association (IIA) Task Force, which included representatives from the Western Australian and South Australian internet service provider associations, and was chaired by Mr Jeremy Malcolm of the Western Australian Internet Association. The IIA committee consulted on a draft of the code with consumer and business representatives, including calling for public comment.

The code is on the ACMA website at www.spam.acma.gov.au. Spam code registered The code requires internet service providers and email service providers: • to provide spam filtering options to their subscribers • to tell subscribers what default filtering of the subscriber’s email the internet or email service provider does at its own servers • to advise subscribers how to deal with and report spam • to ensure their acceptable use policies prohibit the use of their networks for spamming; and to inform subscribers to that effect and • to comply with all lawful requests of law enforcement and regulatory agencies investigating spam activity.

The code requires internet service providers: • not to have open relay or open proxy servers, and to impose the same obligations on their subscribers through their acceptable use policies • to retain the right in their acceptable use policies to scan their own networks for subscribers’ misconfigured mail and proxy servers • to ensure their acceptable use policies allow for the immediate termination of connections they host where the connection has become an open relay or open server (a zombie), either due to intentional misconfiguration or to unintentional infection by a virus or other intrusion • if notified that a subscriber’s account is spamming (for example, where the subscriber’s computer is a zombie), to take reasonable steps to warn the subscriber and offer suggestions on how to correct the problem—the internet service provider may immediately terminate the connection if the problem is serious or continuing and • if the internet service provider is using dynamic IP address allocation, to use all reasonable efforts to retain records of subscriber allocation for at least seven days.

SUMMARY OF BEST PRACTICE TECHNICAL MEASURES An internet service provider or email service provider • should publish sender policy framework (SPF) records for each domain administered by it and • shall comply with all Asia Pacific Network Information Centre requirements for keeping WHOIS (domain names and IP addresses) data updated, including ensuring that their own internet service provider customers do the same. IN ADDITION, AN INTERNET SERVICE PROVIDER SHOULD: • impose reasonable limits on the rate subscribers can send email • allow subscribers to authenticate to their mail servers using SMTP AUTH (see below) or an equivalent • not distribute customer premises equipment that is configured by default so as to allow remote administration across the internet • prevent automated registration of email accounts • provide reverse domain name system entries for any server on an internet service provider’s network being used to send email, including those of the internet service provider’s subscribers and • where technically and commercially viable, not permit computers at dynamically allocated internet protocol addresses to connect directly via internet port 25, which is generally used for SMTP.

Note: SMTP-AUTH extends SMTP (simple mail transfer protocol—a protocol for sending email messages between servers) to include an authentication step through which the client effectively logs in to the mail server during the process of sending mail. Summary of code provisions

8 ACMAsphere | Issue 7 – April 2006 N E W S ACMA is reviewing the way telephone companies collect identity information about their pre-paid mobile phone customers. This information can help emergency service organisations respond quickly to time-critical emergencies and also help identify people who make hoax calls to emergency services. It can also be used to assist law enforcement and national security agencies in investigating crime, including prosecuting people who make life- threatening calls. The information is stored in the Integrated Public Number Database (IPND), an industry-wide database of all listed and unlisted public telephone numbers. The current information collection processes are not providing data of sufficient quality and consistency. Other possible improvements to the identity-checking process, which may reduce industry costs and provide a simpler process for consumers, are also being examined. These include removing the identity- checking process from retail outlets such as supermarkets and petrol stations, and requiring mobile phone companies to collect and verify the information at the time the pre-paid mobile service is activated. The rules applying to supply of pre-paid public mobile telecommunications services are set out in the Telecommunications (Service Provider – Identity Checks for Pre-paid Public Mobile Telecommunications Services) Determination 2000, which provides for three alternative methods of identity checking: • a point-of-sale process where carriage service providers collect information about purchasers of pre-paid services, including name and address, at the time the service is purchased or • a post-sale process where they verify collected identity information or • a process where a carriage service provider could comply with an ACMA-approved compliance plan. In response to increased concerns worldwide about identity security and the anonymous use of pre-paid mobile phones, several countries have announced the introduction of an identity-checking regime for pre-paid mobile phones similar to the Australia system. Other countries have announced tightening of identity-security arrangements that may have similar benefits. Pre-paid mobile phone services enable users to pay in advance for the costs of their mobile phone calls. As credit is reduced, the user has the option of purchasing another pre- paid service or recharging the credit for their existing service. Post-paid services typically involve a fixed-term contract with bills sent to the customer at regular intervals. In 2001–02, pre-paid services accounted for approximately 32.5 per cent of the mobile phone service market in Australia. At the close of 2004–05, pre-paid services accounted for approximately 51 per cent of the 16.5 million mobile services in operation in Australia and represented the major area of growth in the mobiles market. This strong growth can be expected to continue, particularly as pre-paid mobile services are enhanced with the addition of value-added services previously only available to post-paid customers.

All telecommunications carriage service providers are required to provide information for the IPND under Part 4 of Schedule 2 to the Telecommunications Act 1997. The IPND is managed by Telstra as a condition of its carrier licence. It contains customer data including a public number and associated information such as the customer’s name and address and the name of the service provider. This data may only be accessed and used for certain ‘approved purposes’ such as providing directory services, producing public number directories, and assisting law enforcement agencies or emergency service organisations.

Telecommunications service providers must ensure the IPND Manager receives correct information about their customers for the effective operation of the 000 emergency call service. They are also required to provide assistance to law enforcement and national security agencies. A vital part of this is to maintain accurate records of their customers’ personal details. As part of its review, ACMA released a discussion paper, Identity Checks for Pre-paid Mobile Services, for which submissions close on 28 April 2006. For more information about the review, contact ACMA’s Community and National Interests section by email cnit@acma.gov.au or telephone 03 9963 6800. Pre-paid mobile identity-check processes being reviewed To prevent the broadcast of programs that directly recruit or solicit donations for terrorist organisations and terrorist activities, ACMA has determined new program standards for subscription and open narrowcasting television services. The new standards reflect existing Commonwealth anti-terrorism laws and will ensure that ACMA can act more effectively if inappropriate material is broadcast. The standards state that open and subscription narrowcast television services must not broadcast programs that can reasonably be construed as: • directly recruiting persons to join, or participate in, the activities of a terrorist organisation; or • soliciting or assisting in the collection or provision of funds for a terrorist organisation.

The definition of ‘terrorist organisation’ in the standards is linked to the list of terrorist organisations prescribed in the Commonwealth Criminal Code Regulations 2002. The standards place the obligation on television narrowcasters to ensure that prohibited programs will not be broadcast. Program content that is part of a bona fide report, comment on a matter of public interest or political opinion is not prohibited. This exception is intended to ensure that freedom of expression is not unduly restricted.

The current television narrowcast codes of practice already limit the ability of narrowcasters to broadcast views that are likely to incite or perpetrate hatred towards, or vilify particular groups, and they provide adequate safeguards on these matters. Determining standards was preferred to codes amendment because a standard enables stronger, more expeditious enforcement mechanisms to be used in the event of a breach and does not require the complainant to complain to the broadcaster first. ACMA decided to impose standards following an investigation into the broadcast of Al Manar programming by Television and Radio Broadcasting Services (TARBS) in 2004. Al Manar is a channel based in Lebanon and was being delivered by TARBS, a service provider based in Australia, which offered subscription narrowcasting services. While the investigation was terminated before findings were made owing to the cessation of the TARBS business, the investigation had revealed that programs on the Al Manar channel included material directed towards soliciting funds and promoting the activities of terrorist organisations by calling for donations and publishing their website addresses. Work on the investigation highlighted a gap in the regulatory framework. Under the relevant class licence condition, narrowcasters only commit an offence and breach the class licence condition if they intend to use a broadcasting service to commit the offence or are reckless in their knowledge of whether the service is being used to commit the offence.

In most cases, narrowcasters will not have the intention or direct knowledge required for such an offence. They are not necessarily directly involved in program production, may acquire their content from third parties and may not have viewed the programs that they broadcast. The new standards address this gap by prohibiting programs that directly recruit participants or solicit donations for terrorist organisations, regardless of a narrowcaster’s intention or knowledge about the program content. New standards for narrowcast television services

ACMAsphere | Issue 7 – April 2006 9 N E W S Australian internet performance across different technologies and access plans is generally consistent with transmission protocols and the inherent nature of the internet, according to a recent ACMA report. The report, Understanding your internet quality of service 2004–05, provides some insights into the performance consumers are experiencing in using internet services. It assesses Australian consumers’ experience in using internet services, including download and upload data rates across major cities and regional areas, network availability and latency. The speed with which internet users can download data was a key performance consideration. The study found that digital subscriber line (DSL) and dial-up internet, which serve the majority of Australian internet users, achieved download data rates of around 83 and 74 per cent of advertised rates respectively. As expected, cable users achieved high download and upload data rates, but with greater levels of variation, while wireless services also displayed greater variation than DSL. These results are consistent with the current engineering limitations of the technologies.

Actual data rates experienced by subscribers are unlikely to be exactly as advertised. The advertised rates (the theoretical maximum rate advertised in access plans) cannot be guaranteed in every instance because of technical and environmental factors that are outside an internet service provider’s control. The data used in this study comes from a sample of internet users that have been self-selected and is therefore not randomly generated. Data samples are also limited for regional areas and caution should be exercised in drawing inferences about the applicability to Australian internet users more generally. ACMA is currently considering the most appropriate strategy for future monitoring of internet services. The report is on the ACMA website (www.acma.gov.au and go to Internet > Internet quality of service) or email industry.analysis @acma.gov.au. The same web page contains other information about internet service, including a link to a fact sheet about factors affecting internet performance.

Report on internet performance released Up to 31 March 2006, ACMA has undertaken a level of complaint and enforcement action under the Spam Act 2003 that indicates the considerable activity occurring in this regulatory area. In this period of almost two years since the Spam Act came into effect on 10 April 2004, ACMA has: • received 4,162 formal complaints • received approximately 880,000 reports of spam through ACMA’s SpamMATTERS automated reporting system • received approximately 300,000 reports of spam to ACMA’s ‘Reporting Spam’ email address • responded to more than 2,700 verbal and written enquiries submitted by business and consumers • written to around 600 companies advising them of their obligations under the Spam Act • issued formal warning letters to 10 companies or individuals • entered into enforceable undertakings with five companies and individuals • issued 13 fines collectively to five companies/individuals and • commenced action in the Federal Court against one alleged global spammer. The chart presents quarterly complaint figures with SMS complaints separately highlighted to indicate their growing incidence since 2004.

10 ACMAsphere | Issue 7 – April 2006 N E W S RAOUL CRUZ DIRECTOR OF DRAGNET INTERNET SERVICES RECEIVES THE 200TH CARRIER LICENCE AT ACMA’S MELBOURNE OFFICE FROM JONQUIL RITTER, EXECUTIVE MANAGER ALLOCATIONS, AND ROBERT JOHNSTON, MANAGER, TELECOMMUNICATIONS LICENSING AND NUMBERING ALLOCATION The number of telecommunications carrier licences issued has risen from three to 200 in the period since the introduction of full and open competition in July 1997. ACMA issued the 200th licence on 9 March 2006 to Dragnet Internet Service Pty Ltd, an internet service provider operating from Albury that provides services throughout Victoria and New South Wales to rural areas and some major inland cities. It proposes to expand its operations by building its own infrastructure to provide wireless internet services in rural Victoria and New South Wales.

The majority of new carrier licences have been issued to operators providing wireless broadband services in regional and rural areas. Cheap wireless technology, government subsidies to operators providing services in the regional and rural areas and a growing economy have driven the increase in the number of carriers. Another factor has been a reduction in carrier licence charges. From 1 July 2004, ACMA reduced the carrier licence application fee from $10,000 to $2,200 and the minimum annual charge from $10,000 to less than $1,000. Up to that date, ACMA had issued 134 carrier licences, with 66 licences issued in the period since.

A list of licensed carriers is on the ACMA website at www.acma.gov.au (go to Licences > Telecomms > List of licensed carriers). 200th carrier licence issued ACMA has allocated a new community radio licence in the Upper Murray region of New South Wales and Victoria to Upper Murray Community Radio Inc. (UMCR), which will add to the range and diversity of services in the area. The service will broadcast on 88.7 MHz, 98.7 MHz and 107.7 MHz on the FM band. UMCR is currently broadcasting on 88.7 MHz and 107 MHz under a temporary community broadcasting licence that began in 1994 and expires on 30 April 2006. The permanent licence will commence on 1 May 2006.

Applications for two Upper Murray licences were invited in 2005 and UMCR was the only applicant for this licence. Its application was assessed with particular regard to whether the proposed general interest service would meet the existing and perceived future needs of the community in the Upper Murray area. UMCR currently operates 24 hours a day, seven days a week. The proposed service will provide programs that will cover a wide range of local issues to appeal to the general community in the Upper Murray.

The Upper Murray area is currently served by four national radio services (3ABCFM, 3ABCRN, 3MRR and 3JJJ), one commercial radio service (2AAY) and one community broadcasting service (2BDR – Corryong only). The area is also served by two national television services (ABC and SBS) and three commercial television services (Prime TV, Southern Cross Ten Victoria, and WIN TV). Part 6 of the Broadcasting Services Act 1992 provides for the allocation of community broadcasting licences. Applicants are required to compete for licences on the basis of merit. The process includes opportunity for the public to comment on applications received. In considering applications, ACMA must have regard to: • the extent to which the proposed service would meet the existing and perceived future needs of the community within the licence area of the proposed service • the nature and diversity of the interests of that community • the nature and diversity of other broadcasting services (including national broadcasting services) available within that licence area • the capacity of the applicant to provide the proposed service • the undesirability of one person being in a position to exercise control of more than one community broadcasting licence that is a broadcasting services bands licence in the same licence area and • the undesirability of the Commonwealth, a state or territory or a political party being in a position to exercise control of a community broadcasting licence.

Under section 85 of the Broadcasting Services Act, ACMA is not required to allocate a community broadcasting licence to any applicant. New community radio licence for Upper Murray

ACMAsphere | Issue 7 – April 2006 11 N E W S Representatives of the Office of the Telecommunications Authority (OFTA) in Hong Kong recently visited ACMA’s Melbourne office to discuss ACMA’s anti-spam strategies. The Hong Kong Government is in the process of introducing anti-spam legislation. It has decided to adopt ‘opt-out’ legislation, similar to the United States ‘Can-Spam’ Act, instead of ‘opt-in’ legislation like the Australian Spam Act. In an opt-out regime, companies can send electronic messages to potential customers until the recipient chooses to unsubscribe. In Australia, a sender needs the consent of the recipient before a commercial electronic message can be sent.

Hong Kong intends to supplement its opt-out regime with separate ‘do- not-contact’ lists for voice telephony, fax and short message service. Businesses and consumers will therefore be able to opt out of all marketing via a certain medium by simply registering on the relevant list. The proposed legislation also includes marketing via recorded voice telephone calls. In Hong Kong, local calls are free and as a result, many companies use recorded voice messages as a low-cost form of marketing. Fax marketing (currently excluded from Australia’s Spam Act) will also be covered by the new law. OFTA talks anti-spam with ACMA ACMA has renewed its warning to consumers to take precautions against ‘phishing’, as part of a four- week campaign by the Australasian Consumer Fraud Taskforce to help people protect themselves from scams.

‘Phishing’ refers to fraudulent messages usually sent via email (or in some cases a telephone call) and used to gain illicit access to personal and banking information. These messages appear to come from legitimate businesses, most commonly financial institutions. They are designed to lure recipients into disclosing personal data such as bank account numbers, passwords and credit card numbers, which are then used to commit fraud. The Australian Bankers Association has advised that banks and other financial institutions will NEVER initiate a telephone call or email asking for your password, PIN or personal banking details. Phishing isn’t new. What is new is the increased intensity and technical sophistication of phishing scams. They come in different shapes and sizes, but they all share a common purpose—to trick people into disclosing personal details such as PINs and passwords or to click on a link that downloads a dangerous code that can capture personal information.

The ploys used appear legitimate, such as asking people to supply personal information in response to warnings about ‘security and maintenance upgrades’, ‘investigation of irregularities’ or ‘bills or charges due. More and more of these attacks are being committed by sophisticated crime gangs. The increasing sophistication of the scams means they can all too easily slip under the guard of many computer and internet users. Phishing scams often originate from overseas?once Australians respond and money or personal information has gone offshore, it is extremely difficult to recover or police.

ACMA advises that people should not respond to emails asking for confidential information, account details or passwords. Customers should only visit a bank, retailer or credit card website directly by typing a known website address themselves into their internet browser, or by using their Favourites list—not by clicking on email links. If an email seems phishy, don’t take the bait LEFT TO RIGHT: OFTA'S ASSISTANT DIRECTOR, SO TAT-FOON, ACMA'S SANDY KNOWLES, HEATHER NEATE AND JACKIE FAM, OFTA'S REGULATORY AFFAIRS MANAGER, ELVIN LAM, AND HEAD OF INFORMATION AND COMMUNICATIONS TECHNOLOGIES, HENRY CHANG

Industry self-regulatory bodies and associations will be able to recover the costs of consumer code development from industry through carrier licence charges collected annually by ACMA, which are incurred by carriers in an amount proportionate to their market share. The scheme applies to telecommunications industry codes that deal principally with consumer-related issues and are submitted to ACMA for registration. Refundable costs are able to be approved by ACMA before a code is developed, which will provide increased funding certainty. Refundable costs include the costs of securing professional services and specialist advice to assist in timely code development. Some costs are non- refundable, such as costs not wholly related to the development of a code or that have been funded through other means (for example, by membership fees, salary or Commonwealth funding), but ACMA will consider all other categories of costs. Costs may only be reimbursed if ACMA is satisfied that the total of the claim is reasonable.

Bodies or associations that represent a particular section of the telecommunications industry can apply for a declaration of eligibility for reimbursement at the time a code is proposed, and are required to provide an estimate of the total costs they expect to incur. A declaration of eligibility will be in force for two years and a claim for reimbursement can be made in that period once the code is developed and submitted to ACMA for registration. Only certain codes are covered by the reimbursement scheme. Codes that do not deal wholly or mainly with the relationship between carriage service providers and their retail customers are excluded, such as codes that deal wholly or mainly with community safeguards or network operability. The scheme does not cover codes made under other legislation overseen by ACMA, such as codes made under the Broadcasting Services Act 1992.

Until now, telecommunications industry bodies and associations have directly borne most of the cost of code development, with the exception of financial assistance provided to some consumer representatives by the Minister for Communications, Information Technology and the Arts under subsection 593(1) of the Telecommunications Act. Funding arrangements under this subsection will be varied to prevent duplication of funding. A guide to the reimbursement scheme and online application forms are on the ACMA website at www.acma.gov.au (go to Industry > Codes > Reimbursement of Code Development Costs). New scheme to reimburse consumer code development costs

ACMAsphere | Issue 7 – April 2006 13 N E W S Dr Cleophas Kente Rutabingwa, Chief Executive Office of the Consumer Consultative Council (CCC) of the Tanzania Communications Regulatory Authority, recently spent several days visiting ACMA. He was keen to learn from ACMA’s experience of consumer issues in the communications sector in Australia and to meet with other regulatory bodies as well as consumer advocacy groups. Dr Rutabingwa was particularly interested in ACMA’s approach to consumer consultation through the Consumer Consultative Forum and our current proposal to include industry representatives on the forum to achieve better balanced outcomes.

The Tanzanian CCC is a relatively new body and faces multiple challenges in advocating for lower tariffs, fairer billing systems, high quality service delivery and universal access. There is also a need to ensure Tanzanian consumers are better informed about their rights and consumer law. During his visit, as well as discussing regulatory and consumer interest Telecommunications Industry matters with ACMA representatives, Dr Rutabingwa met with the Deputy Telecommunications IndustryOmbudsman and representatives of the Australian Competition and Consumer Commission, the Australian Communications Industry Forum, the Consumer Telecommunications Network and the Australian Telecommunications Users’ Group (ATUG). While in Australia, he also attended the ATUG conference, held in Sydney in early March 2006.

Guidelines about ACMA’s use of enforceable undertakings associated with compliance with telecommunications obligations were released recently. Enforceable undertakings are aimed at encouraging behavioural change in an organisation. They are able to address systemic problems rather than simply penalise isolated instances of non-compliance or misconduct and a key advantage of this approach from the regulator’s point of view is that the undertaking party takes responsibility for its own organisational and behavioural change.

This power has been successfully used by other regulators to require compliance in a cost-effective and tailored manner. It is similar to the powers of the Australian Competition and Consumer Commission, the Australian Securities and Investments Commission and the Australian Prudential Regulation Authority to accept enforceable undertakings. The acceptance of enforceable undertakings is part of a suite of regulatory measures available to ACMA and could be used as an alternative to, or in addition to, the exercise of other enforcement powers. Measures available to ensure compliance with telecommunications obligations include advice and encouragement, formal warnings, enforceable undertakings, infringement notices, remedial directions or notices to comply, cancellation and suspension of licences, court action, and civil and criminal penalties.

While ACMA seeks to use the minimum power or intervention necessary to achieve a sustained and ongoing commitment to compliance from regulated entities, the ability to accept undertakings is seen as a more responsive and flexible regulatory tool. Undertakings have advantages over other regulatory measures—they can save time and the financial and court resources required for litigation; they allow flexibility and compromise, in that both parties can contribute to structuring the compliance action; they encourage learning; and they ensure that the regulated entity’s process of compliance is ongoing, for example, compared to a one-off fine. ACMA can accept enforceable undertakings about compliance with the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999. It may accept enforceable undertakings at any time, including during or following an investigation of a breach or alleged breach of these Acts. Undertakings are enforceable by the Federal Court. ACMA may accept undertakings that a person will take specified action or refrain from taking specified action to comply with these Acts, or take action directed towards avoiding contravention in the future. ACMA also has the power to accept enforceable undertakings to prevent spam under the Spam Act 2003, although that framework is slightly different. Accordingly, these guidelines do not apply to the acceptance of enforceable undertakings under the Spam Act, or to undertakings that may be given under other legislation. An undertaking is a formal promise to act or refrain from acting in a particular manner. Enforceable undertakings for the purposes of the Telecommunications Act are a person’s written promise expressed to be undertakings under section 572B of the Telecommunications Act which are accepted by ACMA. Practically, they are included in a document signed by both parties which can be used by ACMA as the basis for a court order without ACMA having to establish, in court, a contravention of the relevant Act if the promise is broken.

Enforceable undertakings can be cancelled by ACMA, or withdrawn or varied by the undertaking party with ACMA’s consent. Unless exceptional circumstances apply, ACMA will publish enforceable undertakings on its website at www.acma.gov.au, as they are given. Guidelines for the use of enforceable undertakings – telecommunications obligations is also on the ACMA website. Tanzanian visitor hears about consumer issues Guidelines for ACMA’s use of enforceable undertakings released LEFT TO RIGHT: VINCE HUMPHRIES, MANAGER CONTENT, CREDIT MANAGEMENT AND INFRASTRUCTURE, MICK OWENS, ACTING MANAGER INTERNATIONAL TELECOMMUNICATIONS, DR RUTABINGWA, NERIDA O’LOUGHLIN, GENERAL MANAGER INDUSTRY OUTPUTS, AND JACKIE THORPE, FORMERLY OF ACMA’S CONSUMER INTERESTS SECTION

ACMA is considering a proposal to make a new high- power open narrowcasting radio service available in Canberra, to operate on 1323 kHz on the MF-AM band. This follows ACMA’s November 2005 announcement that, before it made MF-AM spectrum available for new analog radio services, it would take into consideration the suitability of the spectrum for future introduction of digital radio services. The potential use in Canberra of 1323 kHz for digital radio services using the Digital Radio Mondiale (DRM) technology is constrained by an existing co- channel service in Adelaide. Consequently, this frequency is considered suitable for an analog service in Canberra, with transmitter power limited to 400 W with a directional radiation pattern. The proposal follows a submission from Tatley Pty Ltd (trading as Rete Italia), which requested a new high-power open narrowcasting service be made available in Canberra to provide an Italian-language radio service. Rete Italia currently has services in Sydney, Melbourne, Adelaide, Mildura, Swan Hill, Shepparton, Gosford, Wollongong, Ingham and Atherton.

Digital radio services are set to commence in the next 2–3 years, following the government’s announcement of the framework for the introduction of digital radio in October 2005. A pre-requisite for digital radio to be introduced is the availability of suitable spectrum. Different digital radio technologies require different frequency bands and the candidate bands are already extensively used. In most cases, the candidate bands are also under continuing demand for other services, especially analog radio and digital television. In contrast to the digital conversion of free-to-air television, shortage of suitable spectrum is likely to be a significant constraint on the development of digital radio in Australia. For this reason, ACMA has adopted a general policy that gives consideration to restricting the availability of remaining broadcasting services bands spectrum that may be needed for digital radio. ACMA will consider each issue case by case, taking into account the potential and utility of the spectrum for future digital radio services. This may have the effect of restricting the availability of additional analog AM radio services as well as reducing the reliance on VHF spectrum for additional digital television services.

The initial digital radio services will use the Digital Audio Broadcasting (DAB) standard (also known as Eureka 147). This is a technology that has been developed for use in two frequency bands—VHF Band III (174-240 MHz) and L-Band (1452-1492 MHz). Both bands are extensively used by existing services. VHF Band III is widely considered to be superior due to its better coverage and lower infrastructure costs. However, the use of the band for analog and digital television services means there are only limited opportunities to use this band. After considering the availability of spectrum for digital radio, ACMA adopted a general policy that allows for use of VHF Band III for analog and digital television. Wherever possible, at least one VHF Band III television channel should be left available for digital radio use in each area.

L-Band spectrum is outside the broadcasting services band and the use of this spectrum is currently restricted to preserve digital radio options by a statutory frequency band plan. It is unlikely that the DAB technology could ever provide the extensive regional coverage achieved by today’s analog radio services. For this reason, alternative technologies need to be considered. DRM, for example, could provide the wide coverage needed to cover regional and rural areas, and dual standard DAB/DRM receivers are likely to become available. DRM services can be deployed in the medium frequency (MF) band currently used by analog AM broadcasting services. To preserve options while the DRM standard matures and consumer receivers become widely available, ACMA will consider further analog use of MF spectrum case by case, including the utility of that spectrum for use by DRM digital radio services. The potential to use the spectrum for digital radio is likely to be given considerable weight. However, there will be exceptional circumstances where ACMA will decide to use a particular frequency for an analog service.

The DRM technology is also being adapted to operate in broadcasting frequency bands below 120 MHz. While this includes the current FM radio band, the most promising spectrum likely to become available in Australia is the current VHF Band I television spectrum used for channels 0, 1 and 2 (45–50 MHz and 56–70 MHz). To encourage the development of the DRM standard for use in this spectrum and to preserve spectrum capacity, ACMA will also avoid new use of VHF Band I television spectrum, other than short term defence usage or trials of new systems or technologies.

The proposal for the new service was contained in an explanatory paper and draft variation to the radio licence area plan for Canberra, which were published on the ACMA website. Comments closed on 31 March 2006. For more information about the proposal, contact ACMA’s Stirling Finlay on telephone 02 6256 2874. 14 ACMAsphere | Issue 7 – April 2006 MATTERS COMMENT FOR New high-power open narrowcasting radio service proposed for Canberra

ACMA is examining the possible future allocation of television channels originally planned for datacasting services. A discussion paper was released recently and ACMA is seeking comments by Wednesday 26 April 2006 on issues including: • the potential uses for the unassigned television channels, including (among others) datacasting, subscription television, open narrowcasting and mobile television • the level of industry demand for these and other possible applications; • marketing issues, such as possible allocation methods, area sizes, competition limits and spectrum packaging options and • technical issues, such as spectrum availability and priorities in as yet unplanned areas, technical licence conditions and characteristics, compatibility requirements with digital television standards and management of interference to existing analog and digital television services.

The release of the ACMA paper follows publication, as part of the government’s public consultation on media policy, of a discussion paper on media reform by the Department of Communications, Information Technology and the Arts. The media reform paper is on the department’s website (www.dcita.gov.au). The ACMA paper, Future use of unassigned television channels, is on the ACMA website at www.acma.gov.au or contact Brendan Vernon on telephone 02 6219 5262, email spectrum.allocations@acma.gov .au. ACMAsphere | Issue 7 – April 2006 15 MATTERS COMMENT FOR Future use of unassigned TV channels examined To support the introduction of ultra wideband (UWB) vehicle radar technology in Australia in the 22–26.5 GHz frequency band, ACMA proposes to vary the Australian Radiofrequency Spectrum Plan. The proposed variation, under section 34 of the Radiocommunications Act 1992, involves the inclusion of the provisions of Article 4.4 of the International Telecommunication Union Radio Regulations to any cell in any position to which an international footnote reference appears. AMCA is seeking comments about the proposed variation of the Spectrum Plan. Written representations about the proposed variation should be submitted by close of business 19 April 2006 and addressed to The Manager, Space and Terrestrial Policy, Pricing and Policy Branch at the Australian Communications and Media Authority, PO Box 78, Belconnen ACT 2616, or by email to radiocommunications. licensing.policy@acma.gov.au. For more information about the proposal, contact Rebecca Dale at ACMA on telephone 02 6219 5578, fax 02 6219 5133 or email radiocommunications.licensing .policy@acma.gov.au.

UWB to be supported by proposed Spectrum Plan variation ACMA recently released a discussion paper on a proposal to amend the Radiocommunications Act 1992 to allow class licences to be issued in spectrum designated to be spectrum licensed under section 36 of the Act. Under the proposed change, spectrum licensees will be separately consulted if spectrum being considered for class licensing is included in spectrum covered by their spectrum licence. Under the Radiocommunications Act, parts of the spectrum may be set aside for spectrum licensing in two ways. Under section 36, specified parts of the spectrum may be designated to be allocated by issuing spectrum licences. Under section 153B, spectrum may be declared as subject to re-allocation by issuing either apparatus or spectrum licences. A class licence may be issued in spectrum re-allocated under the section 153B arrangements. However, the operation of section 138 of the Radiocommunications Act prevents ACMA from issuing class licences in spectrum designated under section 36 to be allocated by issuing spectrum licences.

Comments on the proposed change closed on 17 February 2006. For more information, contact ACMA’s Space and Terrestrial Regulation section by email to radiocommunications. licensing.policy@acma.gov.au or fax to 02 6219 5133. Proposal to allow class licences in spectrum designated for spectrum licensing

16 ACMAsphere | Issue 7 – April 2006 MATTERS COMMENT FOR ACMA proposes to vary, the Radiocommunications (Low Interference Potential Devices) Class Licence 2000 (the LIPD Class Licence). This licence authorises the operation of a wide range of low power radiocommunications devices operating in various segments of the radiofrequency spectrum. The proposed variation, under section 134 of the Radiocommunications Act 1992, includes: • an addition to authorise the operation of ultra wideband short-range vehicle radar in the frequency band 22–26.5 GHz • an amendment to the limitations on maximum EIRP permitted for wireless microphones • an amendment to allow radio local area network access in the 5 GHz band and • a reduction in the minimum number of channels required by wideband frequency hopping spread spectrum devices in the range 915–928 MHz. ACMA is seeking comment on the proposed variation to the LIPD Class Licence and representations should be submitted in writing by close of business 19 April 2006, addressed to The Manager, Space and Terrestrial Regulation, Australian Communications and Media Authority, PO Box 78, Belconnen ACT 2616, by fax to 02 6219 5133 or by email to radiocommunications.licensing .policy@acma.gov.au.

More information about the proposed variation and a background paper is available by contacting ACMA on telephone 02 6219 5279, fax 02 6219 5133 or email margaret.owen@acma.gov.au. ACMA is proposing to vary the operating conditions of the Melbourne commercial radio services 3AW and 3EE by swapping their frequencies and transmitter locations. Southern Cross Broadcasting has asked ACMA for the variation to allow 3AW, which has a large listening audience, to enjoy an improvement to the reception of its service, in particular, in inner-city Melbourne. Both stations currently broadcast on the AM band, 3AW on 1278 kHz and 3EE on 693 kHz. 3EE has an omni-directional radiation pattern and therefore, in theory, a larger coverage area than 3AW which has a directional pattern.

Comments on these proposals closed on 31 March 2006. The draft variation to the Melbourne licence area plan and explanatory paper are on the ACMA website at www.acma.gov.au or contact ACMA on telephone (free call) 1800 810 241. Proposal to allow 3AW and 3EE to swap frequencies LIPD Class Licence change proposed ACMA recently sought comment on an application from received from Hutchison Telecommunications (Australia) Limited (HTAL) from the requirement to provide local number portability. The application relates to HTAL’s LocalZone product, which is offered on the Orange CDMA network. Comments close on 12 April 2006. For more information, please contact Helen Papazoglou at ACMA on telephone 03 9963 6849.

Hutchison applies for LNP exemption

ACMAsphere | Issue 7 – April 2006 17 A third episode of the 2005 series of Big Brother Uncut has been found to have breached the Commercial Television Code of Practice. Big Brother is a reality television series, broadcast by Network Ten licensees, that presents a group of people sharing a house for approximately three months and competing for a cash prize. Big Brother Uncut is an MA classified program in the series, and contains content that would not be suitable for broadcast in other time periods. The episode broadcast on 4 July 2005 was investigated by ACMA after receiving two complaints from members of the public that had not been resolved by Network Ten. ACMA found that the episode breached clause 2.4 of the code, which requires that material be classified in accordance with the Television Classification Guidelines.

The complaints were initially made to the relevant broadcasting stations, as required under the code. However, the complainants were dissatisfied with the stations’ response and subsequently referred their complaint to ACMA for investigation. The investigation was undertaken in respect of Network Ten (Brisbane) Pty Limited and Network Ten (Perth) Pty Limited. ACMA considers that the 4 July 2005 episode contained strong adult themes, combined with other classifiable elements such as sexual references, implied sexual behaviour and full frontal or partial nudity, with a cumulative intensity beyond that which could be justified by the story line or program context. ACMA found the episode as a whole was beyond the level of suitability for the MA(15+) classification. The classification scheme set out in the code reflects well- accepted community standards and provides safeguards against the broadcast of inappropriate material.

Previously, episodes broadcast on 30 May and 13 June 2005 were found to have breached clause 2.4 of the code, following an investigation into three episodes of Big Brother Uncut in response to considerable public comment on the contents of the program. Following the September 2005 breach findings, the Ten Network provided ACMA with undertakings about the approach it will take in classifying the 2006 series of Big Brother Uncut. The undertakings are intended to ensure that future programs do not contain material that exceeds the MA(15+) classification criteria. ACMA considers these undertakings also address factors which contributed to the code breach found by ACMA in its investigation into the 4 July 2005 episode. ACMA will be looking to Ten to deliver on these undertakings for future series of the program. Given the time that has elapsed, ACMA has committed to ensuring that its investigation procedures are both timely and fair. ACMA will be looking at its investigation processes to identify where improvements can be made, particularly in relation to the timeframes involved.

Following ACMA’s breach findings in September 2005, Ten provided the following undertakings to ACMA. • Ten will conduct an extensive two-day education program for the production crew before the next season of Big Brother to outline the requirements of the MA15+ classification, with a focus on the breach findings. We will reinforce the training with follow-up visits to the production studios once the show has commenced. • Ten will develop detailed internal classification guidelines for the Big Brother production crew based on ACMA’s findings. Ten will give a copy of ACMA’s final investigation report, together with an explanation of the decision, to relevant production staff and management at Ten and Endemol Southern Star. • Ten will report to ACMA before the commencement of the next season of Big Brother on the network’s compliance with the training and information program. • Ten initiated an independent review of the Big Brother production process by Associate Professor Catherine Lumby and Ms Karen Willis, Director of the NSW Rape Crisis Centre. The review looked at whether the necessary precautions are taken to prevent sexually demeaning behaviour in the house.

• In July 2005 Assoc. Professor Lumby conducted a half-day workshop with Big Brother production staff. All senior production staff attended. During the workshop Assoc. Professor Lumby discussed existing procedures, rules, guidelines, codes and operational practices used in producing Big Brother programs. Ways of improving those protocols were also discussed in the context of events that could and have occurred on the show. Ten also undertook to provide a copy of the report of the review to ACMA, and implement the recommendations of the review, including: • Improve codes of conduct and housemate training to increase awareness of sexual harassment, assault and bullying issues.

• Formalise the system of monitoring housemate behaviour from the control room by drawing up guidelines for appropriate behaviour. The control room will use the guidelines to Big Brother Uncut breaches TV code again Continued page 18 INVESTIGATI NS The full reports on these investigations into potential breaches by licensees are on the ACMA website, www.acma.gov.au. Go to ACMA > Publications > Broadcasting > Investigations and then Radio operations and Television operations. The reports are arranged in order of licensee. BREACHES BY BROADCASTERS

18 ACMAsphere | Issue 7 – April 2006 INVESTIGATI NS The full reports on these investigations into potential breaches by licensees are on the ACMA website, www.acma.gov.au. Go to ACMA > Publications > Broadcasting > Investigations and then Radio operations and Television operations. The reports are arranged in order of licensee. BREACHES BY BROADCASTERS identify risky situations and immediately refer them to production executives for advice. • Identifying problematic behaviour at an early stage, and intervening if necessary, will have a positive impact on the nature and context of material that is available for broadcast.

Subsequently, ACMA obtained additional undertakings from Ten: 1. Ten undertakes that Big Brother Uncut production processes will be amended to allow time for classifiers to view the program, and that time and production resources will be available to recompile the program if necessary for classification purposes. Ten will compile Big Brother Uncut in enough time to allow the program to be viewed in its entirety so that any required classification changes can be made before the program airs. This will include enough time to modify and revise all or part of the program as necessary.

In any event, Ten will ensure that all classification matters are fully considered in accordance with Undertaking 2. 2. In 2006, two classifiers will separately assess each episode of Big Brother Uncut. The first classifier will be the full-time classifier of the Big Brother programs who is based on the set in Queensland. The second classifier will be Network Ten’s senior classifier, Sally Stockbridge. 3. For the duration of Big Brother Uncut in 2006, Ten will provide a weekly report to ACMA on any Code complaints received about the program and Network Ten’s response to them. The report will be provided on a confidential basis in a form agreed between Network Ten and ACMA. This information will provide an alternative and immediate form of monitoring that demonstrates Network Ten’s ongoing compliance with the Code, as well as any issues of concern to the public. Ten also undertook to provide additional reporting to ACMA on request. The investigation report is on the ACMA website at www.acma.gov.au (go to ACMA > Publications > Radio & Television > Broadcasting > Investigations > Television operations).

Today FM Sydney Pty Ltd, the licensee of commercial radio service 2DAY Sydney, was found to have breached the Commercial Radio Codes of Practice by broadcasting inappropriate sexual material in the Lowie’s Hot 30 Countdown program. A complaint was received on 17 November 2005 about the program Lowie’s Hot 30 Countdown broadcast by 2DAY FM on 14 November 2005. The complainant alleged that the program contained inappropriate sexual content, particularly as the program has a significant number of young listeners.

ACMA found that the licensee breached clause 1.5 (a) of the Commercial Radio Codes of Practice (the codes) because the program did not meet contemporary standards of decency, having regard to the likely characteristics of the audience. It also found the licensee breached clause 1.7 of the codes because the program was broadcast before 9.30 pm and contained an explicit sexual theme as its core component. Action taken by the licensee to address the compliance issues raised by this finding include: • on 25 January 2006, the Lowie’s Hot 30 Countdown team (the host and presenter) underwent intensive retraining on the requirements of the Commercial Radio Codes of Practice by Austereo’s General Counsel, with specific discussion focused on this complaint; • during these retraining sessions, particular attention was paid to discussion of contemporary standards of decency, the anticipated audience and of broadcasting sexually explicit material outside the permitted hours of 9.30 pm and 5.00 am; and • a commitment has been received from the 2Day FM Program Director (and communicated to the Lowie’s Hot 30 team as well as other on-air and off-air staff) that all interviews that have the potential to be of a slightly risqué nature will be pre- recorded. This will enable Austereo to edit content as required to ensure adherence to the codes and to allow it to make an editorial decision not to run the interview (or parts thereof) if it is considered to be in potential breach of the codes.

ACMA considers that these actions are currently adequate to address the compliance issues raised by the investigation, but will continue to monitor the licensee’s performance. The investigation report is on the ACMA website at www.acma.gov.au ACMA > Publications > Radio & Television > Broadcasting > Investigations > Radio operations.) 2DAY FM breached codes during Lowie’s Hot 30 Countdown Continued from page 17

ACMAsphere | Issue 7 – April 2006 19 INVESTIGATI NS Under the Broadcasting Services Act, each broadcasting industry sector is required to develop codes of practice applicable to the broadcasting operations of its section of the industry. ACMA monitors the operation of these codes and performs an independent adjudicator role where complaints are not resolved between the complainant and the licensee concerned. The following summary is of ACMA investigations into unresolved complaints, as well as complaints about possible breaches of the Broadcasting Services Act or licence conditions, completed between 1 October and 31 December 2005. With the cooperation of Free TV Australia and Commercial Radio Australia (CRA), a three-month report of the number and substance of complaints made directly to the commercial broadcasters themselves is also provided.

COMPLAINTS PROCESS Primary responsibility for the resolution of code-related complaints rests with the licensees themselves. The Broadcasting Services Act lays down a general procedure for complaint handling, whereby a complainant is required to approach a licensee first, who in turn is obliged to respond. However, if a complainant does not receive a response within 60 days, or considers the response received to be inadequate, the matter may then be referred to ACMA for investigation. ACMA refers to these as unresolved complaints and must investigate such complaints unless satisfied that a complaint is frivolous or vexatious or not made in good faith.

Complaints in relation to possible breaches of program standards (children’s television, Australian content and commercial radio), about the Broadcasting Services Act itself and about licence conditions may be made directly to ACMA. Complainants are not obliged to contact a licensee first in these instances. ACMA may make a finding that a licensee has breached a code of practice or a licensee may admit a breach of a code. Breaches of the codes are not breaches of the Broadcasting Services Act, although ACMA may make compliance with a code a condition of licence. Generally, ACMA seeks to ensure that licensees take action to remedy breaches or to put in place procedures to ensure they do not recur. ACMA INVESTIGATIONS INTO UNRESOLVED COMPLAINTS There were 34 ACMA investigations finalised between 1 October and 31 December 2005. Of these, eight resulted in a breach, including three breaches of a code of practice, five breaches of a licence condition and nil breaches of the Broadcasting Services Act. There were 25 investigations that resulted in no breach and one that was terminated.

Of the eight investigations finding a breach, two related to commercial television and six to community radio. The breaches covered five broad issues as follows: • broadcast of material exceeding the classification level of a rated program or a pre-classified viewing time (two breaches) • breach of a licence condition by broadcasting more than the permissible 5 minutes of sponsorship announcements per hour (two breaches) • breach of a licence condition by broadcasting advertisements (two breaches) • breach of a licence condition by not retaining record of broadcast (one breach) and • failure to have a conflict resolution policy in place (one breach).

Broadcasting complaints investigations October–December 2005

20 ACMAsphere | Issue 7 – April 2006 INVESTIGATI NS ACMA INVESTIGATIONS OCTOBER–DECEMBER 2005 NO BREACH FINDINGS COMMERCIAL TELEVISION Australian Capital Territory CTC 10 Southern NSW /ACT The Ronnie Johns Half Hour (promotion) Offensive content in a comedy skit about the crucifixion of Jesus Christ Discrimination New South Wales ATN 7 Sydney Today Tonight Editing of answers to different questions – manipulating the truth Accuracy TCN 9 Sydney Comedy Inc – The Late Shift Vilification of Muslims in comedy skit Discrimination CBN 7 Southern NSW Lost Number of advertisements during the program Hourly limits - average and hourly limits in election periods TEN 10 Sydney Sex and the City Tobacco advertising. Main character reaches to handbag for a ‘morning Marlborough Light’. Complaints Handling Tobacco advertising* TEN 10 Sydney The Ronnie Johns Half Hour (promotion) A comedy skit about the crucifixion of Jesus Christ alleged to be offensive Discrimination BREACH FINDINGS COMMERCIAL TELEVISION Western Australia TVW Perth Family Guy The program contained inappropriate sexual references. PG Television Classification Guidelines NEW Perth The OC (promotion) Objectionable language featured in program promotion broadcast during G time zone Program promotions in G viewing periods - socially offensive or discriminatory language COMMUNITY RADIO New South Wales 2BCR Sydney (Management Practice) Licensee did not have in place a written policy and procedure for dispute resolution Written internal conflict resolution policy 2WAY Port Macquarie (Management Practice) Licensee did not retain recordings of news bulletins Retention of records* 2PAR Ballina Radio On Toast Sponsorship announcements in excess of 5 minutes per hour and broadcast of advertisements Broadcasting advertisements and sponsorship announcements in excess of five minutes* 2GLA Forster John Laws Morning Show Sponsorship announcements in excess of 5 minutes per hour and broadcast of advertisements Broadcasting advertisements* 2OOO Sydney Darpan Sponsorship announcements in excess of 5 minutes per hour and broadcast of advertisements Broadcasting advertisements* 2GLF Sydney Lehren Broadcast of advertisements Broadcasting advertisements* Callsign Program/issue Substance of complaint Code/licence condition applicable to breach finding Queensland TNQ 10 Regional Australian Idol A contestant wore a German Iron Cross badge - offensive to survivors of The Holocaust Cultural sensitivities TVQ 10 Brisbane News Licensee accused of sensationalising an issue Appropriate regard for relatives and provide warnings RTQ 9 Regional Comedy Inc – The Late Shift Offensive content in a comedy skit in which Jesus Christ is interviewed after crucifixion Discrimination BTQ 7 Brisbane Today Tonight Invasion of complainant’s privacy Privacy

ACMAsphere | Issue 7 – April 2006 21 INVESTIGATIONS TERMINATED COMMERCIAL TELEVISION New South Wales ATN Sydney Today Tonight Misrepresentation of a neighbourhood dispute Investigation terminated – invalid complaint All breaches were of a code of practice unless otherwise indicated. *breach of a licence condition or the Broadcasting Services Act 1992 **potential breach of a licence condition or the Broadcasting Services Act 1992 South Australia ADS 10 Adelaide Channel Ten News Broadcast of discriminatory language in the description of a person being described in a court case – ‘He had a wog hairstyle’ Discrimination Tasmania TNT 7 &10 Tasmania Southern Cross Nightly News Inaccuracy and political bias in news report Accuracy and fair and impartial presentation Victoria HSV 7 Melbourne Today Tonight Violation of child's rights through the ambushing of a single mother by reporter. Privacy matter in relation to the child Privacy of children GTV 9 Melbourne A Current Affair Segment giving large exposure to a website. No response to complaint.

Distinguish paid material and complaints handling. GTV 9 Melbourne Comedy Inc – The Late Shift Skit of ‘The Last Supper' ridiculed Christians. Response from production house explained the skit was a parody of the Da Vinci painting of ‘The Last Supper’. Complaints Handling Discrimination, provide substantive response, time limit in responding and advise complainant of referral of complaint COMMERCIAL RADIO New South Wales 2PTV Sydney Breakfast Program Offensive derogatory term used in broadcast Material unsuitable for broadcast and gratuitous language 2UE Sydney John Laws Broadcast contained material that was below common decency levels Material unsuitable for broadcast Queensland 4EL Cairns Mornings with John McKenzie Broadcast of racist comments Vilification South Australia 5AA Adelaide Bob Francis Comments expressing the desire to smash a judge's face in led complainant to believe the licensee was advocating violence in the community Vilification and material unsuitable for broadcast Tasmania 7TTT Hobart Benchwarmers Offensive, sexist and degrading comments broadcast Vilification and material unsuitable for broadcast proscribed matter Western Australia 6PR Perth Saturday Sports Openline Comments about a convicted murderer were unreasonable.

Standards of decency COMMUNITY RADIO New South Wales 2RES Sydney Voice of India Broadcasting advertisements and sponsorship announcements in excess of five minutes Broadcasting advertisements and sponsorship announcements in excess of five minutes** ABC TELEVISION ABW Perth, WA Roller Coaster The depiction of females in a sexually suggestive way was excessive for a G rated program Classification of all programs. SBS RADIO 6SBSF Perth, WA Lo Scandaglio Political bias in discussion on SBS Radio. Bias in news and current affairs SBS TELEVISION SBS Sydney, NSW World News Impartiality and bias in a report about the Middle East Balance and accuracy in news and current affairs

Complaint handling by commercial radio stations The Commercial Radio Codes of Practice require each commercial radio broadcaster to provide CRA with an extract of the record of complaints received. CRA provides a consolidated report to ACMA. Member stations recorded 99 written complaints alleging breaches of the Commercial Radio Codes of Practice during the October–December 2005 quarter. Written complaints October–December 2005 Talkback & discussion News & current affairs Music programs Advertising Miscellaneous Total Offensive matters in 16 4 5 11 6 42 Prohibited matter in 32 0 0 0 0 32 Other complaints 8 2 0 0 15 25 Total 56 6 5 11 21 99 Source: CRA Commercial Radio Codes of Practice: Complaints summary October to December 2005 22 ACMAsphere | Issue 7 – April 2006 INVESTIGATI NS The Commercial Television Industry Code of Practice 2004 requires each commercial television broadcaster to report to Free TV Australia, within 15 working days of the end of each quarter, the number and substance of written complaints alleging specific breaches of the code. Free TV provides a consolidated report to ACMA. Commercial television stations reported 214 written complaints about matters covered by the Code of Practice in the October–December 2005 quarter, 43 per cent fewer than the 376 complaints reported in the previous quarter. COMPLAINTS UPHELD In the October–December 2005 quarter, there were 15 instances (related to four broadcast items) where a station agreed that a complaint identified a breach of the code. compared with 10 instances of a complaint being upheld in the previous quarter. 1. There were three upheld complaints about an advertisement shown during The Sound of Music (Seven Queensland). The network agreed that the advertisement, which was classified M, was inappropriately placed as a result of human error.

2. There was one upheld complaint in relation to an incorrect statement made in an introduction to a segment on Seven News (Seven Network). The network said the lead-in statement for a story on a cervical cancer vaccine, which incorrectly stated that the vaccine was a cure, resulted from an error in scripting. The network did not intend to mislead viewers. The actual story on the vaccine contained the correct information. The network will work to ensure that such errors do not occur again. 3. There was one upheld complaint concerning a news bulletin shown during Rove Live, (Network Ten). The news bulletin includes footage of a deceased person in New Orleans. There was no warning to viewers during the news bulletin of the potentially distressing image. The full news report did include a warning for viewers. The network has brought this to the attention of the bulletin producer to emphasise the need for care with footage in news updates. 4. There were 10 upheld complaints in relation to language used during the broadcast of the NRL Grand Final (Nine Network/WIN Television). The network agreed that language used during interviews with players was inappropriate. Live programming does not allow an opportunity for the broadcaster to delay vision and audio and there is no opportunity to warn viewers of potentially offensive language. However, the response to the viewer acknowledged that the network made an immediate on-air apology and the Nine Network, the Tigers Club and the NRL had issued official apologies the following day. COMPLAINTS NOT UPHELD Programs receiving the highest number of complaints (not upheld) were: • The Ronnie Johns Half Hour (Network Ten)— 29 complaints, mostly concerning perceived discrimination and language considered unsuitable. • Seven Nightly News (Seven Network)—19 complaints, mostly concerning perceived inaccuracy in reporting and graphic images considered inappropriate for the time zone.

Internet content is assessed in accordance with the National Classification Code and Guidelines. The prohibited categories for Australian-hosted content are RC (Refused Classification), X 18+ (consensual sexually explicit material), and material rated R 18+ (Restricted) that is not protected by adult verification procedures. For overseas-hosted content, the prohibited categories are RC and X 18+. For Australian-hosted prohibited items, ACMA issues a take-down notice to the relevant internet content host, directing it not to host the content. Failure to comply with such a notice may result in a maximum penalty per day of $5,500 for an individual and $27,500 for a corporation. For overseas-hosted prohibited or potentially prohibited items, ACMA notifies the content to the suppliers of approved filter software in accordance with procedures outlined in the Internet industry codes of practice. Under the codes, internet service providers are required to provide one or more approved filters for the use of their subscribers. In addition, if ACMA finds internet content is of a ‘sufficiently serious’ nature (such as child pornography), it will notify the relevant police force and/or the relevant accredited hotline overseas. Internet complaints, February 2006 Complaints received 82 Invalid complaints 1 11 Investigations terminated 2 6 Investigations completed 3 70 Items actioned 3 76 1. A complaint is not investigated by ACMA if: • the complaint does not meet the statutory requirements under subclause 22(3) and clause 25 of Schedule 5 (eg no internet address provided; complainant not an Australian resident); or • the complaint falls within the meaning of subclause 26(2) of Schedule 5 (frivolous, vexatious, not made in good faith, or made for the purpose of frustrating or undermining the effective administration of the scheme); or • the complaint concerns matters not within the scope of Schedule 5 (eg the complaint relates to an electronic ‘virus’). 2. A complaint is terminated under subclause 26(4) of Schedule 5 if ACMA has insufficient information to conclude the investigation. 3. ACMA assesses each piece of internet content, such as a single web page or newsgroup posting, separately (these are referred to as ‘items’ of internet content). Action is taken in relation to items of internet content found to be prohibited or potentially prohibited.